Wednesday, June 10, 2009

Installment 64B. State Bar tries to apply discovery procedure to trial testimony (Third in Philip E. Kay Series)

Count on the State Bar to do everything possible and some things impossible to take a default. In my case, Deputy Trial Counsel Melanie J. Lawrence failed twice before resorting to villainy, with help from both the Hearing and Review Departments, to get a terminating sanction. The Hearing Department defaulted Philip Kay when he refused to retake the stand after a week's misruling on his objections.

Kay argued that Rules of Procedure of the State Bar, rule 187, provided the State Bar's only remedy: referring the case to the superior court for contempt proceedings. The Bar Court held that it could use rule-186 procedures, which allow imposing terminating sanctions against discovery abuse. (See at p. 45, for both rules.) Rule 186 applies to discovery and allows application of the gamut of procedural sanctions, including termination. Rule 187 applies to "witnesses" and allows referral of nonappearing or uncooperative witnesses to superior court for contempt proceedings. Since rule 187 deals with witnesses, it covers both discovery and trial. If, as the Hearing Department contends, rule 186, despite saying otherwise, applies not only to discovery but also to trial, supporting that interpretation requires explaining why two separate rules exist to redress the same transgressions. On the Hearing Department's interpretation rule 186 and 187 collapse with the addition of contempt proceedings to the misnamed discovery sanctions in rule 186.

This uniquely broad concept of "discovery," that includes testimony at trial, is at odds with rule 186 itself. Rule 186, which authorizes using the Civil Discovery Act for discovery in Bar cases, incorporates the Civil Discovery Act into the Rules of Procedure of the State Bar, but rule 186 doesn't otherwise extend the Discovery Act's scope; the rule only limits its application in State Bar cases, prohibiting arrest and placing conditions on case dismissal. When the State Bar expands the scope of rule 186 to include trial, it goes beyond the underpinning Discovery Act. If section 186 applies to refusals to testify at trial, then the superior court using the Discovery Act, which rule 186 applies to Bar cases, could invoke the Act's sanction provisions to handle refusals to testify in a civil case. The State Bar argues respondent's refusal to testify justifies imposing discovery sanctions because the refusal thwarts the Bar's ability to prove its case in the same way as respondent's refusal to participate in discovery. The State Bar and the Bar Court should inquire why under the Rules of Civil Procedure the superior court couldn't invoke the Discovery Act to default a defendant who refuses to testify in a civil case.

Why then the policy distinction between refusal to testify at deposition and trial, only the first engaging the Discovery Act? During discovery either party's refusal to cooperate prevents the opposed party from building a case, but at trial the parties' positions are no longer analogous. If the plaintiff or petitioner takes the case to trial, that party presumably has sufficient evidence to prove the case. (See Alvarez v. Sanchez (1984) 158 Cal.App.3d 709, 714 [public policy disapproves of relieving plaintiff from meeting his burden of proof by defaulting defendant at trial].) The State Bar's need for Kay's extended trial testimony demonstrates the State Bar knowingly took the case against Kay to trial lacking the wherewithal to prove it.


Robin said...

they might have a little problem. CCP1991 kind of excludes the action the court took. Just read the short legislative history on this statute. The legislature took away the ability to strike an answer 100 years ago. Black letter law so old no court in this state would take this action. Isn't this void ab initio?

Stephen R. Diamond said...

Hi Robin,

The Legislature omitted the provision allowing striking the answer because the Supreme Court found the statute unconstitutional in form. (Lewis v. Dunne (1901) 134 Cal. 291.) The violated constitutional requirement reads: "Every act shall embrace but one subject, which subject shall be expressed in its title. . . . No law shall be revised or amended by reference to its title; but in such case the act revised or section amended shall be re-enacted and published at length as revised or amended."

The invalidity didn't go to substance, since striking the answer is allowed, although disfavored, as a discovery sanction.

Robin said...

Hello Stephen,
I disagree. The case came down in 1907, which stated that in order to strike an answer or pleading of a party, under these circumstances, one has to have been found guilty of contempt, first.It's mentioned in the annotated notes of CCP 1991 [westlaw] In addition, I think there might have been problems of; 1]you can't be punished twice for contempt, and 2] the punishment for contempt is outlined in the statute and it doesn't include "striking" of an answer. So, after the case of 1907, the legislature took it upon themselves to delete the ability of striking an answer. It's interesting that the legislature just didn't add the requirement of finding contempt first, and instead deleted the inclusion of striking the pleading. The criteria for what can be done during discovery, and the reasons why, as you have discussed, are different than the goals of determining whether or not the court has the jurisdiction to order someone to answer specific lines of questioning, under the evidence code. This is at trial, and the court does not have jurisdiction to order someone answer anything. There are still constitutional issues, rights and privileges to be considered. No?
I read the unconstitutional part of lewis differently than you. I thought that the amendment of 1901 [which was to delete that part of the statute] was declared unconstitutional. Because it dealt with more than one issue.In other words, the way they went about deleting that provision in the statute was what was considered unconstitutional, not he issue itself.The original statute was written in 1872, and was not addressed for over thirty some years.
Thanks, your thoughts?

Robin said...

Hi again,

My reading of the discovery sanction is "if you don't "appear" at the deposition, a pleading can be stricken". There is no dispute that Phil Kay appeared at the hearing, he refused to take the stand, only after, the judge was allowing questions to be entered as evidence, when Mr.Kay was refusing to answer based on privileges [ attorney-client]. CCP 1985 et.seq, states that in order to refuse to testify or be sworn, based on the assertion of privilege one has to attend the hearing. Please let me know if you think that is not a correct reading of the section of misc. orders of the court.

Stephen R. Diamond said...


I'm not sure that it's a good idea for me to publish a dissection Philip Kay's arguments, considering that the State Bar read this blog seven minutes after you posted your last comment. If you send your e-mail address, I could comment more freely.

Stephen R. Diamond said...

For the record: Robin is right that the 1907 revision of Cal. Code of Civil Procedure section 1991 reflected the invalidity of a former provision allowing a notary or other similar official, who swears in a witness out of court, to strike a defendant's answer upon defendant's refusal to testify. The earlier provision had been invalidated by _Summerville v. Kelliher_ (1904) 144 Cal. 155.

Kathy said...

Robin, are you MRS. Phil Kay? If so, hi from Kathy Hunt, now languishing (but still practicing plaintiff's employment law) in "progressive" Washington state. My best to you and to Phil.